December 11, 2003
Civil Division-Kent County (739-7641)
Dennis L. Schrader, Esquire
Wilson, Halbrook & Bayard
107 West Market Street
P.O. Box 690
Georgetown, DE 19947
Re: Freedom of Information Act Complaint Against Rehoboth Beach Planning Commission
Dear Mr. Schrader:
Our Office received your Freedom of Information Act ("FOIA") complaint on September 29, 2003 alleging that the Rehoboth Beach Planning Commission ("the Planning Commission") violated the open meeting requirements of FOIA. Your complaint arises out of a series of meetings held by the Planning Commission over the course of August-September 2003 when the Commission discussed the issuance of a building permit to your client, Cottingham & Associates, LLC ("Cottingham"), to construct twelve residential dwellings on the site of the old Joseph Cottages in Rehoboth Beach.
The City Manager and Acting Building Inspector issued a building permit to Cottingham on July 15, 2003. The Planning Commission appealed that action to the City of Rehoboth Board of Adjustment. After briefing and oral argument on September 19, 2003, the Board of Adjustment dismissed the appeal on the ground that the Planning Commission lacked standing. In executive session on September 20, 2003, the Planning Commission discussed whether to appeal the Board of Adjustment's decision to the Superior Court. In public session at the meeting on September 20, 2003, the Planning Commission voted to appeal to the Superior Court. At a subsequent public meeting on October 13, 2003, the Planning Commission voted to rescind the decision to appeal to the courts.
You allege that the Planning Commission violated FOIA by: (1) discussing matters of public business at a meeting on September 8, 2003 which were not noticed in the agenda for that meeting; and (2) by meeting in executive session on September 20, 2003 for a purpose not authorized by law. (1)
By letter dated October 1, 2003, we asked the Planning Commission to respond to your complaint. We granted the City Solicitor an extension of time, and received the Commission's response on October 31, 2003.
The Planning Commission contends that it met lawfully in executive session on September 20, 2003 to discuss litigation strategy. The Planning Commission also contends that the agenda for the September 8, 2003 meeting gave sufficient notice to the public of the matters that would be discussed.
FOIA requires all public bodies to "give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, . . . ." 29 Del. C. § 10004(e)(2). FOIA defines an "agenda" as "a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor
. . . ." Id. § 10002(f).
FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" as authorized by statute for executive session. 29 Del. C. § 10004(a). FOIA authorizes a public body to go into executive session to discuss "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." Id. § 10004(b)(4).
A. Agenda -- September 8, 2003 Meeting
The agenda for this meeting was posted on August 29, 2003 at least seven days in advance as required by FOIA. The agenda did not mention the Cottingham development project, the building permit issued to Cottingham by the City, or the Planning Commission's pending appeal to the Board of Adjustment. There was nothing in the agenda to draw the public's attention to the fact that the Commission would discuss anything having to do with the Cottingham development project.
The minutes of the September 8, 2003 meeting show that after the subject of "Old Business" came up on the agenda. the Chairperson of the Planning Commission (Harvey Shulman) made two motions: (1) to authorize the Chairperson, Vice Chairperson, and Secretary "to speak on behalf of the Planning Commission" at the hearing before the Board of Adjustment on September 19, 2003; and (2) to hold a special meeting on September 20, 2003 "for the purpose of deciding upon further legal action should an adverse decision be handed down by the Board." The Commission voted unanimously in favor of both motions.
We have previously determined that a public body cannot "use the general rubric of 'new business' or 'old business' to satisfy the requirements for an agenda under FOIA: 'to draw the public's attention to the fact that a specific important subject will be treated.'" Att'y Gen. Op. 03-IB17, at p. 4 (July 31, 2003) (quoting Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610, at p.5 (Aug. 29, 1986) (Allen, C.)). As we wrote in that earlier opinion: "FOIA requires sufficient specificity in the agenda's description of the items to be discussed to ensure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as 'old business' and 'new business.' Such vaguely worded descriptions invite discussions and actions on any topic without the public notice required by FOIA."
We determine that the Planning Commission violated the open meeting requirements of FOIA by failing to give sufficient notice in the agenda for the September 8, 2003 meeting that the Commission would discuss further action to take to challenge the building permit issued to Cottingham.
B. Executive Session - September 20, 2003 Meeting
Your complaint assumes that a public body cannot invoke the litigation strategy exemption for executive session unless the public body's attorney is present to give legal advice. The plain language of the statute, however, states that the exemption applies to "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, . . . ." 29 Del. C. § 10004(b)(4) (emphasis added). The statute does not preclude litigation strategy sessions by a public body without counsel present. Whether the exemption applies turns, not on the presence of legal counsel, but rather on the subject matter discussed. The focus of the exemption is on the potential to compromise a public body's litigation position - "when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." 29 Del. C. § 10004(b)(4).
The minutes of the executive session held on September 20, 2003 show that the Planning Commission "reviewed and discussed the printed materials regarding current litigation and current and potential legal action which were sent to the Board of Adjustment for the September 19, 2003 meeting by Mr. George J. Dannerman, Esquire of DUANE MORRIS LLP." We determine that the Planning Commission has met its burden of proof under FOIA to show that it met in executive session for a purpose authorized by law: to discuss litigation strategy with respect to the building permit. The Commission "could reasonably conclude that open discussion of those issues would have an adverse effect on" the Commission's decision whether to seek court review of the Cottingham building permit. Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., 1995 WL 733401, at p.3 (Dec. 5, 1995) (Balick, V.C.).
We note that the Planning Commission could rely on another FOIA exemption for executive session, which allows a public body to meet in private to discuss "the content of documents, excluded from the definition of 'public record' in Section 10002 of this title where such discussion may disclose the contents of such documents." 29 Del. C. § 10004(b)(6). FOIA excludes from the definition of a public record "[a]ny records specifically exempted from public disclosure by statute or common law." Id. § 10002(d)(6). "'[T]he privileges for attorney-client communication and attorney work produce established by common law have been incorporated into the Open Records Act.'" Att'y Gen. Op. 02-IB16 (July 30, 2001) (quoting Denver Post Corp. v. University of Colorado, Col App., 739 P.2d 874, 880 (1987)). See also Att'y Gen. Op. 97-IB05 (Mar. 4, 1997) (letters between town officials and outside legal counsel exempt from disclosure under FOIA).
For the foregoing reasons, we determine that the Planning Commission did not violate FOIA when it met in executive session on September 20, 2003 to discuss litigation strategy as authorized by law. We determine that the Planning Commission violated the notice requirements of FOIA by failing to indicate in the agenda for the September 8, 2003 meeting that it would discuss and take action in response to the building permit issued to Cottingham & Associates, an important matter of public concern.
We do not believe that any remediation is necessary for that violation. Since then, the Board of Adjustment has dismissed the Planning Commission's appeal challenging the building permit, and the Commission has decided not to appeal further to the Superior Court. The building permit issue is now moot. The Planning Commission is cautioned, however, to comply strictly with the requirements of FOIA in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady
Lawrence W. Lewis, Esquire
Deputy Attorney General
Walter W. Speakman, Jr., Esquire
Phillip G. Johnson
1. You also allege that the Planning Commission voted to take actions with respect to the building permit without a quorum. That is a matter of municipal law and not within our jurisdiction under FOIA.